Friday, August 10, 2012

Rawlsian Legislatures: A Modest Proposal

(Attention conservation notice: various harebrained schemes
I cooked up preparing for a seminar on Rawls that appear to structurally mimic ideas
about a “veil of ignorance.” Of purely theoretical interest.)

[Update 13 August: see also my further thoughts on these proposals here].

John Rawls’ A
Theory of Justice famously introduced the idea of an “original position,”
a hypothetical situation in which citizens would come together behind a “veil
of ignorance” to select principles of justice that can regulate their common
life. There are different ways of understanding the OP, but one useful way –
which Rawls himself favoured later in life – is to imagine that the “contracting
parties” in the original position are not the members of society themselves,
but rather their representatives. Each of these representatives – modelled as rational
negotiators – is then supposed to bargain for the best possible “deal” acceptable
to the citizens they represent on the terms of cooperation in society, but without knowing which specific set of
citizens they represent. This is supposed to ensure that the negotiating
parties will only agree on principles that would be acceptable to all citizens
as “free and equal.” Leif Wenar in the Stanford Encyclopedia of Philosophy describes
the basic point well:

The original position is a
thought experiment: an imaginary situation in which each real citizen has a
representative, and all of these representatives come to an agreement on which
principles of justice should order the political institutions of the real
citizens. Were actual citizens to get together in real time to try to agree to
principles of justice for their society the bargaining among them would be
influenced by all sorts of factors irrelevant to justice, such as who could
appear most threatening or who could hold out longest. The original position
abstracts from all such irrelevant factors. In effect the original position is
a situation in which each citizen is represented as only a free and equal
citizen, as wanting only what free and equal citizens want, and as trying to
agree to principles for the basic structure while situated fairly with respect
to other citizens. For example citizens' basic equality is modeled in the
original position by imagining that the parties who represent real citizens are
symmetrically situated: no citizen's representative is able to threaten any
other citizen's representative, or to hold out longer for a better deal.

The most striking feature of the
original position is the veil of ignorance, which prevents other arbitrary
facts about citizens from influencing the agreement among their
representatives. As we have seen, Rawls holds that the fact that a citizen is
for example of a certain race, class, and gender is no reason for social
institutions to favor or disfavor him. Each party in the original position is
therefore deprived of knowledge of the race, class, and gender of the real
citizen they represent. In fact the veil of ignorance deprives the parties,
Rawls says, of all facts about citizens that are irrelevant to the choice of
principles of justice: not only their race, class, and gender but also their
age, natural endowments, and more. Moreover the veil of ignorance also screens
out specific information about the citizens' society so as to get a clearer
view of the permanent features of a just social system.

In Rawls’ view, the veil of ignorance can also play a role
in the selection and evaluation of constitutions and laws. While the
representatives of the citizens in the OP are supposed to select principles of
justice in complete ignorance of the citizens’ class, gender, plan of life, and
even the general features of their society, the veil can be “lifted” gradually
to allow the representatives to agree on how these principles apply to more concrete
institutions. This is what Rawls calls the “four-stage
sequence”:

After agreeing on the two
principles and a principle of just savings, the parties then proceed further
through the four-stage sequence, tailoring these general principles to the
particular conditions of the society of the citizens they represent. The veil
of ignorance that screens out information about society's general features is
gradually thinned, and the parties use the new information to decide on
progressively more determinate applications of the two principles.

At the second stage the parties
are given more information about the society's political culture and economic
development, and take on the task of crafting a constitution that realizes the
two principles. At the third stage the parties learn still more about the
details of the society, and agree to specific laws and policies that realize
the two principles within the constitutional framework decided at the second
stage. At the final stage the parties have full information about the society,
and reason as judges and administrators to apply the previously-agreed laws and
policies to particular cases. When the four stages are complete the principles
of justice as fairness are fully articulated for the society's political life.

Re-reading Rawls recently while preparing to teach a class, it struck me that it would be
possible to mimic some of the structural features of this interpretation of the
veil of ignorance in actual legislatures.

The simplest way to do this, it seems to me, would be to
divorce electoral constituencies from
accountability constituencies. Suppose
legislators are elected in a relatively large number of small single-member constituencies
(I’m thinking of a small place like New Zealand, where electorates are small,
but one could imagine more complex schemes elsewhere). They go to a Parliament or
Congress and negotiate laws as best as they can. At the end of their term,
however, they must justify themselves to a randomly
allocated constituency (not necessarily the one in which they were elected),
which decides whether or not they can run for re-election. (A variant: the
accountability constituency [also?] has the power to impose a financial penalty
on the legislator if it finds the justifications for its actions lacking). The
trick here is that the constituency that can hold the legislator accountable is
not known in advance, either to the
electors or to the elected MPs. If Rawls is correct, this should encourage
elected legislators to negotiate “fair” legislative proposals –legislative proposals
that are broadly acceptable to all in society.

An example may help. Imagine the electors for Wellington
Central elect Grant Robertson
their MP. At the end of his term, the Electoral Commission randomly assigns him
a different constituency. Say he draws Auckland central, for example. Robertson then has to go to Auckland
Central to defend his record in parliament; let’s say he’s given one month to
make his case. Auckland Central then holds an “up or down” vote deciding
whether or not he can run in the next election. If he’s voted down, he cannot
run in that electoral period (though he may run in later periods – no permanent
disqualification is envisioned here); otherwise, he gets to run again, if he so
wishes, in Wellington Central.

One can easily imagine all kinds of problems with this
system. (Consider the possibilities for strategic voting; and I’m sure the pros
could come up with all kinds of ways of gaming this system). But I’m having way
too much fun thinking about it to worry about these inconveniences right now. For example,
imagine accountability constituencies that are functional or income-based rather
than geographical. Legislators could be elected in standard geographical
constituencies, but then randomly assigned to income-defined constituencies to
make their case for being allowed to run for re-election. We might imagine that
large “juries” of people from specific income quantiles could be empanelled,
and MPs randomly assigned, at the end of their terms, to make the case for
their policies to one of these juries in week-long trials. The juries then
decide whether or not the MP is to be allowed to run again. Or imagine we got
rid entirely of electoral constituencies. Instead, people would vote on the abstract
composition of the legislature (expressing their preferences not only about the
party composition of the legislature, as in closed list PR systems, but perhaps
also their preferences about the level of education or income legislators must
have, what percentage of legislators must be women, of a particular race, etc.).
Political parties are then tasked to fill a legislature with these
characteristics, but the legislators must then, at the end of their term, justify
themselves to a randomly assigned constituency, which has the power to impose
fines (and perhaps to award prizes).

Ok, so what’s the benefit of this, you may ask? If Rawls is
correct, the fact that legislators would not know in advance to whom in society they would be held
accountable would mean that they would be inclined to act in ways that are “publically
justifiable” to all, including the “least advantaged.” What do people think?

2 comments:

This is quite intriguing. I've generally found the argument that the difference principle assumes universal perfect risk aversion compelling, and lacking a solution given that individually differentiated levels of risk aversion would themselves be unknown in the original position. In this case, we might overcome that problem in that the legislators would have to choose positions that would be suitable for a wide range of risk aversion preferences.

But I would also have to question the representation of minorities in this system. The rational strategy for legislators would be to select policies that cater to the modal constituency or voter; there is no motivation to be concerned with others. That, I think, is a problem with Rawls generally: he's too concerned with the universal at the expense of the diverse. This system works as an implementation of Rawls' thought experiment, certainly. But I think it also demonstrates one of the flaws of that approach.

Thanks Jeff. I like the point about risk aversion - it had not occurred to me. Re the representation of minorities - I would say that this would depend on how the system would be specifically structured. It seems to me that, at least some variants of this would lead to probabilistic "minority vetos."

Here's a potential example. Suppose 70% of constituencies favor option A, and 30% favor option B. Given a reasonable level of loss aversion, the optimal policy for re-election seeking legislators is not to target option A exclusively, but some compromise between A and B that would be more or less publicly justifiable to the constituencies favoring B. After all, they have a nonzero chance of drawing a B-constituency.

In Rawls this sort of problem is solved, it seems to me, by the requirement of consensus. (Any reasonable - that is, cooperation-seeking - minority is able to reject a deal negotiated by their representative, so the negotiators end up only seeking deals that cannot be reasonably rejected by anyone). But of course while that makes sense for Rawls' thought experiment, it would make no sense for an actual legislature.

Winner, 3QD Politics and Social Science Prize (Strange Quark)

Subscribe

Subscribe via email

About Me

I teach political theory and political science at Victoria University of Wellington. My recent research has focused on the history of political thought, especially ancient Greek and Roman thought. I also have a strong interest in dictatorship, revolution, and other political pathologies. In another life, I would have been a microbiologist or a computer scientist.